Young, Matter of, 184S14
| Decision Date | 19 September 1985 |
| Docket Number | No. 184S14,184S14 |
| Citation | 482 N.E.2d 723 |
| Parties | In the Matter of Gregory A. YOUNG. |
| Court | Indiana Supreme Court |
The Respondent in this case has been charged with three counts of professional misconduct. A Hearing Officer appointed pursuant to Admission and Discipline Rule 23, following a hearing, has submitted his Findings of Fact, Conclusions of Law and Recommendation. The Respondent now seeks review contending that the Disciplinary Commission failed to meet its burden of proof and that the Hearing Officer's conclusions and recommendations are inconsistent with the findings of fact. Both parties have briefed their respective positions.
Respondent's contentions will be considered within the review process and resolved by this Court's ultimate determination. There being no challenge to the findings of fact submitted by the Hearing Officer, we accordingly adopt them as our own and specifically find that the Respondent, Gregory A. Young, is an attorney admitted to the Bar of the State of Indiana on April 27, 1979, and is subject to the disciplinary authority of this Court.
In that all three counts arise out of the same series of events, we now find as to all counts that in December of 1980, the Respondent and his fiancee entered into a conditional sales contract with John and Neoral Cody for the purchase of a house. The contract provided for a purchase price of $34,000, a down payment of $1,700 and monthly payments of $450, with an interest rate of 14 1/2% per year on the balance. Payments were to be made until the total sum was paid off.
At time of closing, the Codys did not have sufficient funds to pay the realtor's entire commission of $2,380 and, thus, executed a promissory note in favor of Maxine Neiger, the agent. The note was for a balance of $1,680, payable in one year and bearing an interest rate of 14 1/2% per year. The Codys were unable to pay off the note upon its maturity and Neiger filed suit against them. The Codys contacted the Respondent and requested that he represent them in the suit. The Respondent advised Mr. Cody that the Respondent should not represent them because of his involvement in the buyer-seller relationship. The Respondent did advise the Codys regarding possible affirmative defenses and a potential counterclaim. They also discussed the possibility of bankruptcy. The Codys were emphatic that they wanted the Respondent to represent them; they did not want to counterclaim but only to have a judgment entered for the smallest amount possible. The Respondent filed his appearance on their behalf on January 27, 1982.
At this time, the Respondent was aware that the Codys did not have the money to pay the realtor and that they depended on Respondent's payment under the contract to make their mortgage payment on the property. Before the Respondent undertook the representation, he failed to advise the Codys that the lawsuit may reasonably result in: (1) the Respondent becoming a garnishment defendant in the event Neiger pursued proceedings supplemental; (2) the Respondent becoming a potential plaintiff against the Codys with regard to a quiet title action to the real estate; and (3) the Respondent being a defendant in the event Neiger sought pre-judgment attachment of his payment to the Codys. The Respondent also failed to advise the Codys that, should his payment to them be garnished causing them to default on their mortgage, a foreclosure action could follow, at which time, he would be able to bid for the property and purchase it for less than the contract price.
The parties reached an agreement on the note and an agreed judgment was entered. Under its terms, the Codys were to pay $100 per month, even though they felt they did not have the additional funds. The foregoing action was the extent of Respondent's representation of the Codys.
The Codys made no payments to Neiger under the agreed judgment. Prior to the execution of the agreed judgment, the Respondent had discussed with the Codys the possibility that he and his fiancee could pay Neiger the $100 per month if they had extra money. In the event they made the payment, the Codys were to credit the amount against the outstanding balances on the real estate sales contract. The Respondent made one such payment in 1982.
In February of 1983, the Codys assigned Respondent's contract payments to Commercial Credit Corporation who held a second mortgage on the subject real estate. In accordance with such assignment, the Respondent wrote two personal checks to Commercial Credit, on August 24, 1983 and on September 7, 1983. The Checks were drawn on Respondent's personal Indiana National Bank account for $378.99 and $757.98 respectively. They were returned to the Respondent due to nonsufficient funds in the account. The Respondent issued the checks knowing that his account had insufficient funds, but planned to cover the checks with money he was expecting to receive from clients for legal services already performed. He represented to Commercial Credit that he would satisfy the...
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Strutz, Matter of
...reasonably may be affected by his own financial or business interests unless the client consents after full disclosure. In re Young (1985), Ind., 482 N.E.2d 723, 723. As we observed in In re Welke (1984), Ind., 459 N.E.2d 725: The Code of Professional Responsibility for Attorneys at Law doe......
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In re Bell, 49S00-9702-DI-116.
...reasonably may be affected by his own financial or business interests unless the client consents after full disclosure. In re Young (1985), Ind., 482 N.E.2d 723, 723. As we observed in In re Welke (1984), Ind., 459 N.E.2d 725: The Code of Professional Responsibility for Attorneys at Law doe......
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